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POLITICO - Under the Radar - Full Blogen-us2015 POLITICOhttp://www.politico.com/rssTue, 03 Mar 2015 18:06:32 ESTPOLITICO - Under the Radar - Full Bloghttp://images.politico.com/global/v2/politico_logo_new.gifhttp://www.politico.comblogs/under-the-radar/
The State Department is stepping back from a spokeswoman's comment last week suggesting that the agency's ethics lawyers signed off on donations to the Clinton Foundation during Hillary Clinton's tenure as secretary of state.

Asked at a daily briefing Thursday about the foundation's failure to submit a $500,000 donation from the country of Algeria for a conflict of interest review in 2010, State Department spokeswoman Jen Psaki told reporters that the department did such reviews whenever the non-profit founded by former President Bill Clinton sent in information about a potential gift.

"We like to review -- and we have reviewed every donation that was submitted," Psaki said.

However, there are no indications any Clinton Foundation donations were ever sent to the State Department for approval.

Asked about Psaki's comment, another State Department spokesperson said Monday that the reviews the agency did were of paid speeches Bill Clinton was proposing to make and business deals he wanted to enter into. From 2009 to 2012, hundreds of speech requests and a handful of consulting deals were sent to State Department lawyers for sign off. The vast majority were approved.

"We received requests regarding speeches and consultancies of former President Clinton," State spokesman Alec Gerlach said.

Clarifying Psaki's earlier comment, Gerlach said that State Department reviewed every request that came in, not every donation.

In her remarks last week, Psaki also said the State Department was not troubled that the Algeria gift was never flagged to State. "In this case, the fact that the process has - was not followed in this particular incident does not raise concerns with us," the spokeswoman said.

The ethics agreement struck before Hillary Clinton became secretary of state in 2009 only required State Department review of donations to the Clinton Foundation under very limited circumstances: when a foreign government wanted to "materially" increase its giving to four specific Clinton Foundation programs.

Gifts from foreign governments to one program, the Clinton Global Initiative, were barred altogether, as were new gifts to the other four programs from governments that had not previously supported them.

The agreement did not require vetting of donations from individuals, whether foreign or U.S. citizens, or from private companies, but did require public disclosure of the names of donors on an annual basis. Part of the pact also required Bill Clinton to submit proposals for paid speeches as well as plans for consulting deals.

Both the Clinton camp and the State Department have noted that the agreement went beyond the requirements of the law.

A foundation spokesman pushed back against criticism of the nonprofit on Monday, sending talking points to Clinton allies urging them to rebut "attacks on the Clinton Foundation" by stressing that the entity is "a world-class philanthropy" and that "every penny" of the Algeria gift went to helping Haiti recover from the devastating earthquake it experienced in 2010.

UPDATE (Monday, 8:06 P.M.): This post has been updated to add an additional line of comment from the State Department.

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http://www.politico.com/blogs/under-the-radar/2015/03/state-department-walks-back-claim-on-clinton-foundation-203355.htmlMon, 02 Mar 2015 18:38:53 ESTA federal judge has blasted the Environmental Protection Agency for badly botching its response to a conservative group's Freedom of Information Act request, but ultimately declined to punish the agency for its conduct.

In an opinion issued Monday, U.S. District Court Judge Royce Lamberth delivered a brutal tongue-lashing to the EPA over its handling of a request from Landmark Legal Foundation about possible delays in regulations prior to the 2012 elections.

The case helped expose that former EPA Administration Lisa Jackson had a semi-secret internal email account under the fake name Richard Windsor.

"Thirty months after Landmark's initial FOIA request, it remains unclear to this Court whether EPA undertook a comprehensive search of either official or personal email accounts belonging to the agency's senior leadership," Lamberth wrote. "While the existing record in this case does not support a holding that EPA acted in bad faith, it is obvious to this Court that EPA has, once again, fumbled its way through its legally unambiguous FOIA obligations."

Landmark had asked Lamberth to impose sanctions on the agency and to imposed an independent monitor on its handling of FOIA requests. But the judge said the evidence fell short of proving that EPA officials intentionally destroyed records in order to evade the requirements of the disclosure law.

"After months of discovery pertaining to EPA's search process, Landmark has uncovered insufficient evidence that EPA actually failed to preserve responsive documents in bad faith," Lamberth wrote. "And without demonstrating that EPA spoliated documents with the culpable state of mind necessary for punitive sanctions, Landmark cannot ask the court to infer the relevance of any potentially missing documents."

An EPA spokeswoman said that the agency welcomes the judge's decision not to impose punishment in the case and that officials have been overhauling the agency's FOIA system.

"We are pleased the court denied the motion for sanctions," EPA spokeswoman Liz Purchia said. "EPA is focused on creating more efficient work processes to ensure FOIAs responses are done more effectively and at a lower cost. That includes adopting industry concept and best practices into the delivery of information technology services in areas such as cloud computing, mobile technology and workplace standards."

Lamberth, who was appointed by President Ronald Reagan, seemed to be fishing for a more direct apology from the EPA. He called one of the agency's court filings "offensively unapologetic."

"Despite admonitions from this Court and others ... EPA continues to demonstrate a lack of respect for the FOIA process," the judge wrote. "Neither EPA nor its counsel has offered Landmark or this Court any indication of regret...During what should be a concerted effort to reaffirm the public's trust in the EPA, the agency's general refusal to accept responsibility for its mistakes throughout this case is baffling."

In the new ruling, Lamberth singled out specific EPA officials for criticism. He called a top FOIA official at EPA, Eric Wachter, "evasive and uninformed" about aspects of the agency's handling of the request. The judge says another EPA official, Nena Shaw, was "surely negligent," "at best....demonstrated utter indifference to EPA's FOIA obligations" and "at worst....is lying."

While not forcing any changes on the agency, the judge urged EPA to consider requiring employees to preserve work-related emails they received or sent from personal accounts on those accounts. At the moment, agency policy is that employees should forward such emails to official accounts, then delete them from the personal ones, he said.

Lamberth said keeping the emails in personal accounts, as well as forwarding them, would be a wise safeguard given indications that messages have been lost in the past.

Purchia did not respond to a request for comment on the judge's proposal.

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http://www.politico.com/blogs/under-the-radar/2015/03/judge-blasts-but-wont-punish-epa-over-foia-failures-203346.htmlMon, 02 Mar 2015 17:10:25 ESTDespite President Barack Obama's recent vow to be "as aggressive as we can" in court to get his executive actions on immigration back on track, the Justice Department threatened this week to make an end-run around the judge who blocked those actions, but did not act after the judge failed to meet the timeline the administration laid out.

"Absent a ruling by the close of business on Wednesday, February 25, Defendants may seek relief from the Court of Appeals in order to protect their interests," Justice Department attorneys wrote--twice--in their stay request.

At a forum in Miami Tuesday hosted by Telemundo and MSNBC, Obama said his administration was pulling out all the stops in the legal fight.

"We have appealed it very aggressively," Obama said. "We're going to be as aggressive as we can because not only do we know that the law is on our side, but history is also on our side."

However, the deadline of sorts the administration set in the case came and went Wednesday evening without any further legal action by the Justice Department. The rest of the week also passed without any new legal moves, including the threatened bid for a stay from the 5th Circuit Court of Appeals.

"I think what I would point to to demonstrate our aggressiveness in pursuing this is the fact that we filed for an emergency stay," Earnest said in response to a question at the daily briefing for reporters..

"We pushed the judge to rule in the middle of this week. He said that he wanted to hear from the plaintiffs by the beginning of next, so it's taking a little bit longer than we would like. But at the same time we've also sought an expedited appeal at the 5th Circuit on the merits of the case," Earnest added. "I think it is fair to say that we're doing everything we can at this point to try to advance this through the legal process."

While the Justice Department did file an appeal on Monday, as of Friday afternoon no papers had been filed to expedite that appeal.

Asked if officials might be holding back on taking the stay request to the appeals court in order to avoid further complicating the ongoing drama on Capitol Hill over funding for the Department of Homeland Security, Earnest said: "Not that I'm aware of...We have made pretty clear as often as we could that we consider these to be two entirely different issues."

Gov. Greg Abbott (R-Texas), who has spearheaded the states' litigation over Obama's immigration moves, said the White House isn't making a full-court press because the administration's case is weak.

"The Obama Administration is slow-walking their appeal because they know they are on the wrong side of the law," Abbott said. "If the President was confident in his legal case, the DOJ would pursue an immediate ruling from the Fifth Circuit. The DOJ's delay shows a lack of confidence in their legal arguments - and for good reason. The President's actions plainly violate the rule of law and upset the separation of powers enshrined in our Constitution."

While the judge in the case didn't make any mention of the Justice Department's threat to go to the appeals court this week, his order giving the states seven days to respond did stop short of the full 20 days the states had asked for.

One immigration activist said Friday she suspects the administration will take the stay request to the 5th Circuit next week. Lorella Praeli of United We Dream stopped short of criticizing the administration, but said supporters of the president's immigration actions will keep up pressure for the White House and Justice Department to press as hard as possible to clear away the legal obstacles.

"We've all noticed," Praeli said, when asked about the administration's failure to act after the Wednesday target set in the federal government's filing. "My guess is they're waiting for March 2nd to come....I think we should see the Department of Justice moving to the 5th Circuit pretty quickly. We believe they have to move aggressively."

Another activist, Cesar Vargas of the Dream Action Coalition, called on the administration to make sure it is taking the legal initiative and not playing catch-up. The White House and the immigrant community need "a strategy that is proactive, not just reactive to the court," Vargas said.

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http://www.politico.com/blogs/under-the-radar/2015/02/no-action-from-feds-as-immigration-case-timeline-slips-203261.htmlFri, 27 Feb 2015 19:13:39 ESTAttorney General Eric Holder said Thursday that he's troubled by a drop in the number of African-American FBI agents in recent years, but confident that FBI Director James Comey can turn around the numbers.

"It bothers me, in the same way that I'm sure that I know that it bothers Jim Comey," Holder told POLITICO's Mike Allen. "And I'm also confident that...if you look at that FBI director who gave that speech last week or week before last, where he talked hard truths and he talked about the history that exists between law enforcement and communities of color, I am totally confident that that FBI director, by the time he leaves, will have increased in a very substantial way the number of African-Americans who serve as special agents."

Comey won accolades in many quarters for his landmark speech earlier this month acknowledging that racial bias infects police work and calling for greater efforts to bridge the divide between many minority communities and law enforcement. He also said the FBI itself needed to do more to diversify its ranks, though he didn't offer specific numbers.

During Holder's interview, timed to coincide with his expected departure as attorney general in the coming weeks, he said the difficulties in hiring and retaining minority special agents may stem from perceptions about law enforcement in such groups.

"I think that we have to be more aggressive in our outreach efforts, try to convince people who are thinking about careers in law enforcement that the FBI is a great place to be, convince people who would not think about a career in law enforcement that you can have a really positive impact on the changes that you want to do by being in law enforcement," Holder said.

"You know, when I was in law school, people said, 'How can you be black and want to be a prosecutor?' You know, there's almost a tradition that you want to be a defense attorney," the former corruption prosecutor, U.S. Attorney and District of Columbia judge said. "I've always thought that you can have the greatest impact by working within the system, by being the person who makes the decision about what cases are brought, what charges are actually filed. And so we have to do a better job than we have in attracting African-Americans, Hispanics, people of color, women to be FBI special agents."

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http://www.politico.com/blogs/under-the-radar/2015/02/holder-troubled-by-drop-in-black-agents-at-fbi-203215.htmlFri, 27 Feb 2015 09:21:59 ESTA Florida fisherman narrowly defeated the federal government at the Supreme Court Wednesday, winning a 5-4 ruling that the three undersized red grouper he threw overboard to avoid an inspector were not covered by an obstruction of justice provision in a financial fraud statute.

Lawyers for fisherman John Yates convinced a bare majority of the justices that his fish caper did not run afoul of a provision in the 2002 Sarbanes-Oxley law barring destruction of "any record, document, or tangible object" with the intent to interfere with a federal investigation.

Liberal Justice Ruth Bader Ginsburg won the votes of conservative Chief Justice John Roberts and liberal Justices Stephen Breyer and Sonia Sotomayor for an opinion that found Congress would need to be more clear it intended to cover objects like fish if it really wanted them covered by a law targeting those cooking the books on Wall Street and at firms like Enron.

"We are persuaded that an aggressive interpretation of 'tangible object' must be rejected," Ginsburg wrote. "It is highly improbable that Congress would have buried a general spoliation statute covering objects of any and every kind in a provision targeting financial fraud in record-keeping."

Democratic appointee Elena Kagan 's playful dissent picked up the support of two of the court's most conservative members, Justices Antonin Scalia and Clarence Thomas, as well as that of a frequent swing vote on the court, Justice Anthony Kennedy.

Kagan turned to a children's book to make her argument that fish fit within the plain meaning of "tangible object."

Alluding to a dictionary definition of the term, she wrote: "A fish is, of course, a discrete thing that possesses physical form. See generally Dr. Seuss, One Fish two Fish Red Fish Blue Fish (1960)." (She also worked in a Mad Libs reference.)

Kagan also had some fun skewering the Ginsburg opinion. "The plurality searches far and wide for anything--anything--to support its interpretation of [the law.] But its fishing expedition comes up empty," Kagan snarked. When she later called the plurality opinion "hard to fathom" was she again poking fun?

Justice Samuel Alito, who often sides with the government in criminal cases, tipped the balance against it this time around.

"The term 'tangible object' should refer to something similar to records or documents," he wrote in a separate opinion concurring in the result. "A fish does not spring to mind--nor does an antelope, a colonial farmhouse a hydrofoil, or an oil derrick....Who wouldn't raise an eyebrow if a neighbor, when asked to identify something similar to a 'record' or document,' said 'crocodile'?"

Alito signaled that the case was a close one, but Yates had the better argument because of various factors at play. The justice also said the references in the law to fraudulent bookkeeping made the inclusion of fish implausible.

"How does one make a false entry in a fish?" he asked.

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http://www.politico.com/blogs/under-the-radar/2015/02/fisherman-fillets-feds-at-supreme-court-203092.htmlWed, 25 Feb 2015 15:03:40 ESTThe federal judge in Texas who blocked President Barack Obama's latest executive actions on immigration signaled Tuesday that he isn't inclined to rush a decision on the Obama administration's request to lift the injunction he imposed last week.

U.S. District Court Judge Andrew Hanen's order saying he'll give the states suing the federal government another week to respond means the issue of a possible stay in the case will likely be taken up by a federal appeals court before he rules one way or another.

The Justice Department warned in its stay application Monday that if Hanen did not act on the stay by the end of business on Wednesday, the feds would move to a higher court.

The next stop would be the 5th Circuit Court of Appeals in New Orleans. After that, either side could potentially seek relief from the Supreme Court.

A Justice Department spokesman did not immediately respond to a request for comment on Hanen's latest order, which is posted here.

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http://www.politico.com/blogs/under-the-radar/2015/02/judge-rejects-feds-timetable-on-immigration-case-203049.htmlTue, 24 Feb 2015 18:27:44 ESTThe Obama administration moved Monday to lift a judge's order blocking President Barack Obama from moving forward with his plan to offer quasi-legal status and work permits to millions more illegal immigrants under executive actions he announced in November.

In a motion filed in U.S. District Court in Brownsville, Texas, Justice Department lawyers asked Judge Andrew Hanen to stay the preliminary injunction he issued last week after finding that the administration failed to comply with legal requirements when it announced an expansion of an existing "deferred action" program for immigrants brought to the U.S. illegally as children and a new program for illegal immigrants who are parents of U.S. citizens or green-card holders.

Hanen is unlikely to stay his own ruling, but the request is necessary in order for the administration to seek relief from a federal appeals court or the Supreme Court. Justice Department lawyers said they intend to approach a higher court if Hanen doesn't rule on the stay request by Wednesday evening.

A lawyer for the officials from 26 states who sued to block Obama's recent immigration actions sent Hanen a letter Monday afternoon urging him not to be rushed. Texas Assistant Attorney General Angela Colmenero said the fact the Justice Department waited nearly a week to ask for a stay undercuts the Obama Administration's call for immediate action.

"If Defendants had any compelling claim of a looming, irreversible harm from temporary injunctive relief, they would have featured it previously," Colmenero wrote in the letter (posted here). She asked that the court give the states at least a week to submit a more detailed response.

Some legal experts believe the administration faces an uphill battle in seeking a stay, but immigrant rights groups and Latino activists pressed the White House to take whatever steps it can to revive the executive actions as quickly as possible.

In the administration's motion (and posted here), Justice Department lawyers also asked the judge to narrow his nationwide injunction to only apply in the State of Texas, which was the lead plaintiff in the case. At a minimum, Homeland Security Secretary Jeh Johnson should be allowed to proceed with the program in other states, the motion argued.

"A nationwide preliminary injunction barring the implementation of the Secretary's Guidance for the exercise of discretion in the administration and enforcement of federal law is plainly not necessary to provide Texas with relief from this alleged harm. At the same time, a nationwide injunction trenches on the authority and discretion of the Secretary in the administration and enforcement of the immigration laws," the Justice Department wrote.

"It also impairs the interests of individuals who may benefit from [the Deferred Action for Parents of Americans program] and modified [Deferred Action for Childhood Arrivals] program and the interests of nonparty States in having DAPA and modified DACA implemented--including the interests of those twelve States and the District of Columbia that filed an amicus brief in support of the Deferred Action Guidance, on the ground that it will 'substantially benefit,' rather than harm, them and their residents," Justice Department lawyers added.

If Hanen rejects the requests to stay or narrow his order, the Obama Administration is likely to seek emergency relief from the 5th Circuit Court of Appeals, based in New Orleans.

"The President's stay request should be denied. A stay is typically granted to have the status quo maintained. Here the status quo is the immigration law passed by Congress, not the executive action by the President that rewrites immigration law," said Abbott, who launched the lawsuit as Texas attorney general. "The President's lawless trampling of the Constitution thwarts the status quo."

UPDATE (Monday, 5:45 P.M.): This post has been updated with Colmenero's letter.

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http://www.politico.com/blogs/under-the-radar/2015/02/feds-act-to-lift-hold-on-obama-immigration-moves-202959.htmlMon, 23 Feb 2015 12:44:23 ESTAttorney General Eric Holder is endorsing a halt to all executions nationwide while the Supreme Court considers whether some lethal injection methods are unconstitutional.

Stressing that he was "speaking personally" and not on behalf of the Obama Administration, Holder said it would be wise to hold off on carrying out the death penalty until the court resolves a challenge to Oklahoma's execution method. A ruling on that issue is expected by the end of June.

"I think fundamental questions about the death penalty need to be asked. And among them, the Supreme Court's determination as to whether or not lethal injection is consistent with our Constitution is one that ought to occur," Holder said in response to a question during an appearance Tuesday at the National Press Club. "From my perspective, I think a moratorium until the Supreme Court made that determination would be appropriate."

In one respect, Holder's remarks were less than shocking. He has long said he is personally opposed to the death penalty. However, the attorney general has authorized prosecutors to seek the death penalty in numerous cases, including the trial underway for accused Boston Marathon bomber Dzhokhar Tsarnaev.

Holder said Tuesday that he believes the justice system is inherently fallible, which makes use of the death penalty unwise.

"Our system of justice is the best in the world. It is comprised of men and women who do the best they can, get it right more often than not--substantially more right than wrong. But there's always the possibility that mistakes will be made, mistakes in determinations made by juries, mistakes in terms of the kind of representation somebody facing a capital offense receives. And it is for that reason that I am opposed to the death penalty," the attorney general said.

"It is one thing to put somebody in jail for an extended period of time, have some new test that you can do and determine that person was, in fact, innocent. There is no ability to correct a mistake where somebody has, in fact, been executed. And that is from my perspective the ultimate nightmare," Holder said.

Shortly after Holder made the comments, his spokesman noted that executions at the federal level have been informally halted as the federal government reviews its own execution procedures.

"Feds have informal moratorium in place pending review of lethal injection," the spokesman, Brian Fallon, said on Twitter.

A judge's order blocking the execution of several federal death row prisoners due to concerns about the execution protocol has been in place for nearly a decade, since 2006. The last federal execution was in 2003.

In 2010, the Obama Administration told a federal judge it was moving forward with plans to execute Jeffery Paul, who was convicted in 1997 of killing retired, 82-year-old Park Service employee Sherman Williams.

Holder, who has announced plans to resign once his successor is confirmed, was vague Tuesday about any findings of the death penalty review and appeared to suggest it was limited to the relatively rare practice of federal executions rather than state executions, which are far more common.

"All I can say I guess at this point is that that review is still under way," Holder said. "We have looked at the federal death penalty to think about what processes we have in place, how it is administered, ask questions about whether or not there are inequities and inequalities in who receives the penalty. That is a process that is still under way, and I don't think, unfortunately, will be completed during my time as attorney general."

While serving as a top Justice Department official under President Bill Clinton, Holder conducted another extensive review of racial disparities in the application of the federal death penalty. The review effectively forestalled federal executions under Clinton.

The Supreme Court allowed another execution to go forward in Oklahoma last month before the justices agreed to hear a challenge to the state's process. The high court later halted the executions of three other inmates in Oklahoma, but it's unclear whether they would do so in other states.

Some observers believe the court is closely split on the issue, which resulted in the court agreeing to take up the issue (which requires only four votes) but not having the majority needed to stay the execution which took place last month

While Holder opposes the death penalty, Obama has used rhetoric that embraces it.

During the 2008 campaign, Obama said he favored the availability of the death penalty in cases of child rape. That put Obama in disagreement with the Supreme Court, which ruled, 5-4, that death was only a constitutional punishment in cases where the victim died and for crimes such as espionage and treason.

Obama's nominee to replace Holder, U.S. Attorney Loretta Lynch, suggested at her confirmation hearing last month that she's a supporter of the death penalty.

"I believe that the death penalty is an effective penalty," Lynch said when asked about her stand on the issue.

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http://www.politico.com/blogs/under-the-radar/2015/02/holder-backs-death-penalty-moratorium-202716.htmlWed, 18 Feb 2015 09:05:56 ESTThe CIA has some good news for a group demanding a copy of the agency's database of nearly 12 million declassified documents: it won't take 28 years to release the set, only six.

A Central Intelligence Agency official told a federal judge Friday that the spy agency has found a way to streamline the review process so that the 11.6 million pages of records requested by the open government outlet Muckrock can be released with only a "spot check" of the documents for snippets of stray classified information that might get tangled up in the files during the release process.

As a result of the "extremely unique circumstances," CIA "has determined it can deviate from the standard security and quality assurance review protocols as a matter of administrative discretion, and instead conduct a more truncated review," CIA Attorney Martha Lutz wrote.

Just last month, the CIA was refusing Muckrock's request outright as too broad and burdensome.

However, Lutz now says the organization can have the so-called CREST database of declassified records delivered on 1200 compact discs in six years for the bargain basement price of $108,000, she wrote in a filing submitted to U.S. District Court Judge Ketanji Brown Jackson (and posted here).

While most Freedom of Information Act battles involve an effort to force the government to make public documents it has never released, all the CREST documents are already available to the public, although only at a National Archives facility in College Park, Maryland. But only about 250,000 pages are posted on the CIA's Web site.

Muckrock is intent on putting the bulk of the records online where anyone across the globe can access them instantly via the Internet.

Lutz said there's no "public interest" in doing that because the CIA is already working on it. As a result of that work, she wrote, "the Agency anticipates the entire CREST database at NARA will be available at [the CIA's] e-FOIA website in about four years."

"The additional significant expenditure of time and resources the Agency would now have to commit to duplicate its previous and ongoing efforts to release the same collection of records to the Plaintiff is not in the public interest," wrote Lutz, chief of the CIA's Litigation Support Unit.

The CIA appears to blame part of the protracted timeline for handling Muckrock's request on security procedures instituted in the wake of massive classified information breaches by Army Pvt. Chelsea (Bradley) Manning and former National Security Agency contractor Edward Snowden.

"Recent security concerns...have increased limits" on the number of people authorized to transfer data off of CIA systems for public release, Lutz wrote.

Muckrock requested the CREST database from CIA last June and filed suit the following month.

Muckrock lawyer Kel McClanahan said the CIA is stonewalling the group's request.

"CIA has intentionally decided that it is going to insist on taking the most convoluted, most burdensome, most unnecessarily slow path to filling this request, because it simply doesn't want to process the request at all," McClanahan told POLITICO.

The CIA "insists on manual review of files to remove metadata when there are dozens of publicly available inexpensive and downright free programs that do it automatically. [CIA] insists on burning all the records to CD even though they would all fit on a single $60 external hard drive, which we offered to provide." the attorney added. "CIA says that this request will take 6 years to process. A reasonable person, even working within CIA's security limitations, could do it in that many weeks, if he used all the available tools. We plan to demonstrate this to the judge, and we hope to show exactly how unrealistic these baseless assertions are."

No ruling from Jackson is expected until April or later.

UPDATE (Sunday, 9:17 P.M.): This post has been updated with comment from McClanahan and to correct the description of where the CREST database is available.

However, Justice Department lawyers agreed not to send the report back to the Hill while the ACLU's Freedom of Information Act lawsuit is pending, unless they seek Boasberg's okay to do so.

"The government can now assure the Court that it will preserve the status quo either until the issue of whether the Full Report is a congressional document or an agency record is resolved, or until it obtains leave of court to alter the status quo," DOJ attorney Vesper Mei wrote in the new filing (posted here).

After an executive summary of the report was released publicly in December following protracted negotiations with the Obama Administration over classification issues, Senate Intelligence Committee Chairman Dianne Feinstein (D-Calif.) sent various government agencies copies of the still-classified updated version of the full report "for use as broadly as appropriate" to ensure that the harsh tactics such as waterboarding described in the report are never used again by the U.S.

Burr wrote to President Barack Obama last month asking for the return of the full, nearly 7000 page report in an apparent bid to keep it from being declassified or released. The new committee chairman also maintained that Feinstein exceeded her authority in sending the full report to the administration without a vote of the committee, but Feinstein suggested the Senate parliamentarian ruled that she did nothing wrong.

The new legal filing from the Obama Administration seems to hew closer to Burr's view of the situation than to Feinstein's, suggesting that her intentions and actions regarding the report even while chairman were not sufficient to convert the full report into an executive branch document susceptible to FOIA.

"The Committee as a whole made a determination not to publicly release the Full Report," Mei wrote. "The ACLU points to no communication from the full committee that contradicts that clearly articulated intent.... Although the ACLU invites the Court to take sides in this legislative dispute, the Court should resist undoing through litigation what the full SSCI decided through the political process."

An ACLU lawyer said the group had achieved its immediate goal of parrying Burr's effort to have the report returned.

"We now have the on-the-record commitment we sought from the CIA and other agencies, which they refused to provide before we filed our emergency motion," ACLU attorney Hina Shamsi said Saturday. "Although the CIA is still fighting to prevent the American public from seeing the full torture report, this dispute is for the court to decide. Senator Burr's extraordinary attempt to interfere with the court's jurisdiction over the torture report fails."

A spokeswoman for Burr had no comment Saturday, but earlier in the week the North Carolina Republican told POLITICO he believes the Obama Administration is essentially backing him up.

"The Justice Department is arguing for my position which is: their argument is going to be that they are 'committee sensitive' documents," he said Wednesday. "We'll let the judge decide."

Burr also said the parliamentarian didn't side with Feinstein in the dispute about sending the final version of the full report to the executive agencies last December.

"The parliamentarian chose to take no position and that is strictly from the standpoint of the inability to make out the transcripts of conversations inside the committee. It was no decision whatsoever," Burr said.

The outcome of the ACLU's lawsuit is likely to turn on whether Boasberg concludes that the copies of the full report now have the characteristics of executive branch records. Administration officials have said some agencies have not opened their copies of the report, apparently in a bid to avoid having them deemed executive branch documents.

Regardless of any ruling by the courts, Obama could order the declassification and release of the full report. Indeed, the new filing seems to acknowledge that the president is caught between the competing requests from Feinstein and Burr.

"The public interest lies in having the political branches of government resolve for themselves what has plainly become a political dispute," Mei wrote.

Obama is unlikely to be in a hurry to act decisively in either direction. In the wake of the release of the report's executive summary in December, CIA Director John Brennan was asked whether he'd support releasing the full text of the report in declassified form.

"I think there's more than enough transparency that has happened over the last couple days. I think it's over the top," he said.

UPDATE (Saturday, 4:41 P.M.): This post has been updated with Burr's comments.

UPDATE 2 (Saturday, 9:22 P.M.): This post has beeen updated to clarify that only some agencies have said they did not open their copies of the full report.